New York Adopts Tipped Worker and Fast Food Worker Minimum Wage Regulations
December 23, 2015
New York Labor and Employment Law Report
December 23, 2015
December 23, 2015
December 8, 2015
In the classic 1980's comedy "Say Anything," the iconic high school senior Lloyd Dobler articulates his career goals as follows: "I don't want to sell anything, buy anything, or process anything as a career. I don't want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed. You know, as a career, I don't want to do that." A cursory Google search reveals that this 25 year old quote still resonates with much affection. But what may be deemed a charming lack of ambition from a teenaged movie character can be the death knell of a First Amendment case brought by a plaintiff who turns this quote into a veritable workplace mantra. Take for example the recent case of Alves v. Board of Regents of the University System of Georgia. In Alves, five psychologists of the Georgia State University Counseling Center submitted a written memorandum to the Counseling Center's director and the director's supervisor, criticizing the director's leadership and management, which they claimed "created an unstable work environment" and prevented the staff from being effective in their work. The memorandum set forth five areas of concern, including deficiencies in management, witness tampering, and selective treatment of staff based on race. A short time later, the director implemented a reduction in force affecting all the staff psychologists, all but one of whom were signatories to the memorandum, and outsourced their services at allegedly lower costs. The five psychologists who had signed the memorandum filed a First Amendment retaliation suit, claiming that they were fired for the "speech" contained in the memorandum, which they contended was made by them as ordinary citizens on matters of public concern. The defendants moved for summary judgment dismissing the complaint, arguing that under the Supreme Court's decision in Garcetti v. Ceballos, the memorandum was written about matters of only personal interest pursuant to the plaintiffs' official duties as employees, rather than about matters of public concern. The lower court agreed with the defendants and dismissed the complaint, which resulted in an appeal to the Eleventh Circuit Court of Appeals. On appeal, the five psychologists employed a Dobleresque view of their job responsibilities, arguing that raising ethical issues and protesting alleged supervisory incompetence were simply not within the ordinary ambit of their job duties. In other words, according to the plaintiffs, their job was only to provide counseling services to students -- not to "process" or "repair" anything within the broader universe of their workplace. The Eleventh Circuit disagreed and affirmed the dismissal of the plaintiffs' complaint. The Court found that the plaintiffs' protests were in furtherance of their ability to perform their job responsibilities with the goal of ending perceived mismanagement. The Court determined that these were matters of personal interest rather than public concern, and therefore, were not protected by the First Amendment. The long and short of Alves and the cases that follow similar reasoning is that while a public employee may say anything in a lawsuit to try to limit their true job responsibilities, lack of ambition, whether real or feigned, is rewarded with applause only in the movies.
December 7, 2015
November 17, 2015
November 13, 2015
November 10, 2015
Michael Kinsley once said "A gaffe is when a politician tells the truth." And one gaffe that has often been repeated is Speaker Pelosi's statement from 2010, saying about the Affordable Care Act, "we have to pass the bill so that you can find out what is in it." There was great truth to that statement, as we are now in an age where the public only finds out what was contained in legislation after it has already been passed. Such as the new 144-page budget deal signed into law last week. It was made public just before midnight on October 26, and with little debate, passed the House on October 28, the Senate on October 30, and was signed into law by the President on November 2. And we are now coming to "find out what is in it." Such as a provision allowing OSHA to increase its penalties by up to 82%, to account for inflation since 1990. OSHA's penalty amounts were previously fixed and not indexed to inflation. However, the "Federal Civil Penalties Inflation Adjustment Act" tucked into the budget deal not only allows OSHA to begin increasing its penalties annually to account for inflation, but also allows it to implement a "catch up" increase for not raising its penalties for the past quarter century. If OSHA elects to do so -- and as the sun rises in the east, OSHA will elect to do so -- it must implement an interim final rule by July 1 that will go into effect by August 1. OSHA's current maximum penalties are $7,000 (for other-than-serious and serious violations), and $70,000 (for repeat and willful violations). Those amounts will likely increase to about $12,500 and $125,000 -- and then increase annually thereafter. For any employer subject to an inspection, whether due to a complaint, referral, emphasis program, or the site-specific-targeting program, the stakes are about to increase.
November 9, 2015
November 6, 2015
October 29, 2015
October 16, 2015
October 14, 2015
In prior blog articles, we've sought wisdom from Sun Tzu, an audit of Santa's Workshop, a theoretical application of the faithless servant doctrine to A-Rod, and Pooh Corner for some Zen advice on day-to-day employment matters. Our next stop on the Employment Law Express is a seasonal walk through the Pumpkin Patch with the Peanuts gang. As only he could, Linus explained the criteria for a visit from the Great Pumpkin: Each year, the Great Pumpkin rises out of the pumpkin patch that he thinks is the most sincere. He's gotta pick this one. . . . You can look all around and there's not a sign of hypocrisy. Alas, like other astute philosophers of historical significance, Linus is likely keenly aware that the importance of sincerity is not limited to the pumpkin patch, but has broad application, even reaching into the black box of the jury room in an employment discrimination case. For those plaintiffs hoping for a bag of treats from the Great Pumpkin (in the form of cash), they need to be mindful for signs of hypocrisy -- a lesson painfully learned by the plaintiff in Housley v. Spirit Aerosystems, Inc., which was just recently decided by the Tenth Circuit Court of Appeals on October 9, 2015. The plaintiff was a Boeing employee who was not hired by Spirit Aerosystems when Spirit acquired the facilities where she worked. She sued for age discrimination, hoping to lure a bounty of treats from the proverbial Great Pumpkin (a federal jury, to be precise), in part by relying on secretly recorded conversations with her supervisors during which she was asked if she was old enough to retire. On the surface, the plaintiff had found a perfect patch from which to receive her treats (i.e., "He's gotta pick this one" -- just listen to the tape). But, was the patch sincere and free of hypocrisy? The jury thought not, and rendered a verdict in favor of Spirit. During the trial, Spirit exposed the plaintiff's hypocrisy by using the fact that she had secretly recorded conversations with her supervisors as after-acquired evidence of wrongdoing that negated any alleged damages. On appeal, the Tenth Circuit refused to find that the lower court committed any reversible error in allowing Spirit to use the recordings for this purpose. In sage, Linusesque prose, the Court reasoned: "The recordings in this case turned out to be a double-edged sword. Housley wanted the jury to know about them for obvious reasons and considering her active promotion of their admission she is not now in a position to complain about getting what she wanted. Spirit turned the tables on her by promoting their use for a different, albeit limited, purpose -- after-acquired evidence of wrongdoing. In the end Housley was obliged to take the bitter with the sweet." Halloween, like a suit for employment discrimination, is goal-oriented -- a pursuit in reaching for "the sweet." Sometimes this goal seems easily obtainable, as noted by the Peanuts characters: Lucy: All you have to do is walk up to a house, ring the doorbell, and say "tricks or treats." Sally: Are you sure it's legal? Yes, in many jurisdictions (including New York), secretly recording a supervisor in a conversation to which the employee is a party is just as legal as knocking on a door and asking for candy. And, on the surface, the recording (depending on its content) should result in the receipt of treats with no more effort than knocking on a door. But not everyone gets a treat. Tricksters may find themselves walking away with nothing but a bag of rocks. So, the lesson for this Halloween season is that employers defending against employment discrimination claims, like Spirit, should always be on the lookout for a smoking gun that, on closer inspection, is nothing more than a Halloween prop ready to backfire if just given enough room to do so.